in Re Henry Gonzales, Jr.
391 S.W.3d 251
Tex. App.2012Background
- Relator Gonzales seeks a writ of mandamus to challenge removal of his court-appointed trial counsel and appointment of new counsel for appeal.
- Judge Sage removed Gonzales's trial counsel and later recused herself; Judge Perkins was then assigned to preside over the underlying case.
- Question presented: whether mandamus lies against the successor judge when the original presiding judge has recused, and whether abatement is appropriate.
- Texas Rule of Appellate Procedure 7.2 generally abates to permit a successor to rule, but its mandatory application is disputed in recusal contexts.
- The court concludes abatement is appropriate to permit Judge Perkins to rule on the underlying motion to reinstate counsel, and directs abatement for 14 days with a supplemental record due by November 30, 2012.
- The mandamus petition is abated and will be reinstated if no ruling is made within the abatement period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus may proceed against a successor judge after recusal. | Gonzales argues the successor should address the underlying complaint. | Sage’s recusal divests the original authority; mandamus cannot reach a non-ruling judge. | Abatement appropriate; successor should rule before mandamus issued. |
| Whether Rule 7.2 abatement is mandatory in recusal cases. | Rule 7.2 should abate to allow successor to act. | Rule 7.2 generally abates when a judge ceases to hold office; not clearly applicable on recusal. | Not mandatory, but abatement warranted to provide opportunity for successor’s ruling. |
| Who is proper respondent and how to proceed with the underlying motion. | Judge Perkins should rule on Gonzales's motion to reinstate counsel. | Until Perkins rules, mandamus cannot compel relief. | Judge Perkins designated as respondent; abatement ordered with record supplementation. |
Key Cases Cited
- In re Schmitz, 285 S.W.3d 451 (Tex. 2008) (mandamus relief follows real party in interest; successor judge not automatically liable)
- In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227 (Tex. 2008) (no mandamus against a successor for what a former judge did)
- State v. Olsen, 360 S.W.2d 402 (Tex. 1962) (writ against successor judge requires some action by the judge)
- In re Newby, 280 S.W.3d 298 (Tex. App.—Amarillo 2008) (abate mandamus to allow successor judge to rule)
- In re Guerra, 235 S.W.3d 392 (Tex. App.—Corpus Christi 2007) (abate not mandatory in recusal; treated successor as respondent)
- In re Shellhorse, 2010 Tex. App. LEXIS 5324 (Tex. App.—Waco 2010) (abstention before successor reviews relator’s complaints)